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Filed 1/28/14 P. v. Johnson CA1/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 

publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication

or ordered published for purposes of rule 8.1115. 

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION ONE

THE PEOPLE,

Plaintiff and Respondent,

v.

MICHAEL A. JOHNSON,

Defendant and Appellant.

 A139871

 (Lake County

 Super. Ct. Nos. CR931131 CR931546

& CR931591)

Defendant Michael A. Johnson appeals following judgments entered pursuant to 

no contest pleas entered to resolve these three referenced cases. Specifically, in case No. 

CR931131, defendant pleaded no contest to count 2, possession of tear gas (pepper spray)

(Pen. Code, § 22900) and count 1 was dismissed. In case No. CR931546, he pleaded no 

contest to counts 1 and 3, possession of methamphetamine (Health & Saf. Code, § 11377, 

subd. (a)) and driving with a suspended license (Veh. Code, § 14601.1, subd. (a)), 

respectively, and admitted one prior prison term (Pen. Code, § 667.5, subd. (b)); all other 

allegations were dismissed.1 The trial court sentenced him to a total of four years (threeyear upper term for methamphetamine possession and one year for the prior, and a 

concurrent 180 days for the suspended license and concurrent year on the tear gas 

possession), to be completed in local custody pursuant to Penal Code section 1170. In 

 

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 The additional allegations included that defendant committed the offense while 

out on bail in case No. CR931131 and three other prior prison terms (Pen. Code, § 667.5, 

subd. (b)). 
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case No. CR931591, the trial court revoked community supervision and imposed 180 

days, concurrently with the other sentences. 

His appellate counsel has raised no issues and asks this court for an independent 

review of the record to determine whether there are any issues that would, if resolved 

favorably to defendant, result in reversal or modification of the judgment. (People v. 

Kelly (2006) 40 Cal.4th 106; People v. Wende (1979) 25 Cal.3d 436.) Defendant was 

notified of his right to file a supplemental brief, and has done so. Upon independent 

review of the record, we conclude no arguable issues are presented for review, and affirm 

the judgment.

DISCUSSION

Penal Code section 1237.5 generally precludes an appeal from a judgment of 

conviction after a plea of no contest or guilty unless the defendant has applied for, and 

the trial court has granted, a certificate of probable cause. There are two exceptions: 

(1) a challenge to a search and seizure ruling, as to which an appeal is proper under Penal 

Code section 1538.5, subdivision (m); and (2) postplea sentencing issues. (People v. 

Shelton (2006) 37 Cal.4th 759, 766; see also People v. Buttram (2003) 30 Cal.4th 773, 

780.) Since defendant’s application for a certificate of probable cause was denied, he is 

not able to challenge the validity of his plea or any other matter that preceded its entry, 

except as permitted under the exceptions. (See People v. Cole (2001) 88 Cal.App.4th 

850, 868.) 

Defendant made suppression motions in the pepper spray and methamphetamine 

cases. Officer Bradlee Middleton testified in the pepper spray case. He observed 

defendant driving a car with expired registration tags, then pull off the street into a lot, 

exit the vehicle and quickly walk away. Middleton stopped his car, exited and called out 

for defendant to stop and return to talk to the officer. The officer saw defendant toss 

away a black object near the car as he walked toward the officer. Not knowing what the 

object was and seeing others in the car, the officer, who was alone, detained defendant in 

handcuffs for safety purposes and ran a records check, which showed defendant was on 

post release community supervision, subject to a search. He then searched defendant and 
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found the canister of pepper spray. The trial court correctly ruled the initial detention 

(the order to stop walking and return to the officer) was proper to investigate the apparent 

vehicle code violation (the expired registration tags). It also correctly ruled the 

handcuffing during the detention was justified given defendant’s tossing away an 

unidentified object towards the car, the presence of others in the defendant’s car, and the 

fact the officer was alone at the scene and reasonably concerned about safety. The 

detention was brief and during that time the officer learned defendant was subject to 

search. Accordingly, the motion to suppress was properly denied.

Officer Michael Ray testified in the methamphetamine case. He was enroute, with 

his K-9, to contact an individual, and at a stop sign saw defendant in a small pickup truck. 

Looking at the officer, defendant began backing up against the flow of traffic, which the 

officer believed might be a vehicle code violation, unsafe backing. The truck then pulled 

to east shoulder, while the officer pulled up next to the driver’s side of the truck. He then 

recognized the defendant and asked why he had backed up. Defendant said he did not 

want the officer to see him driving. The officer believed defendant was on parole, and 

asked him if he was. Defendant confirmed that he was. The officer then conducted a 

parole search and found in defendant’s pants pocket a substance he believed was 

methamphetamine and in defendant’s shirt pocket a glass smoking pipe with residue. 

The trial court did not agree there was a vehicle code violation, but properly concluded 

there was permissible contact before any detention. At that point the officer recognized 

defendant, and was aware of defendant’s parole and search status. Accordingly, this 

motion to suppress was also properly denied. 

The second exception to the requirement for a probable cause statement does not 

encompass defendant’s motion to withdraw his plea on grounds he was under the 

influence of pain killers for an injury he had sustained in jail and he believed his prior 

attorney would get him into a drug treatment program and represent him in a civil action 

against the Sheriff. This is an attack on the validity of the plea based on alleged 

circumstances that preceded the plea and, therefore, is within the probable cause 

statement requirement. (People v. Johnson (2009) 47 Cal.4th 668, 679; see also People 
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v. Placenia (2011) 194 Cal.App.4th 489, 494–495.) In any case, defendant testified, as 

did his prior attorney. It was within the trial court’s province to determine which 

testimony to credit, and it credited that of defense counsel. There was no abuse of 

discretion in denying defendant’s motion to withdraw his plea.

The trial court also did not commit any error or abuse its discretion in sentencing 

defendant. Defendant was ably represented by counsel, who urged probation and 

treatment. The prosecution urged imposition of the upper term on the drug possession 

charge in light of defendant’s decade of drug abuse and extensive criminal history. The 

trial court duly explained its sentencing decision on the record. While recognizing 

defendant’s substance abuse problem, it was persuaded aggravating factors 

predominated, including criminal history, poor performance on probation, and increasing 

seriousness of criminal conduct. Custody credits were properly determined. 

DISPOSITION

After a full review of the record, we find no arguable issues and affirm the 

judgments.

_________________________

Banke, J.

We concur:

_________________________

Margulies, Acting P. J.

_________________________

Becton, J.

 



 Judge of the Contra Costa County Superior Court, assigned by the Chief Justice 

pursuant to article VI, section 6 of the California Constitution.